Summer Shocker

July 1, 2004

Canadian transborder carriers say it's business as usual despite the recent ruling by a US appeals court that the newly minted hours of service (HOS)are illegal. Business as usual for now anyway. No one is certain what kind of HOS rules they will...

July 1, 2004
by
James Menzies and Lou Smyrlis

Categories

Canadian transborder carriers say it’s business as usual despite the recent ruling by a US appeals court that the newly minted hours of service (HOS)are illegal. Business as usual for now anyway. No one is certain what kind of HOS rules they will be facing crossing into the US in the future. And there’s also concern for the fate of the Canadian HOS rules, which were expected to finally be released next year.

A 45-day review period is now underway for the US legislation and, for the time being, the existing rules will continue to be enforced.

“This is clearly a significant decision,” said David Bradley, CEO of the Canadian Trucking Alliance. He pointed out, however, that it remains unclear at this point how the Federal Motor Carrier Safety Administration will respond. “The decision does not compel the agency to re-write the HOS rule or to change anything though I suppose they could. What the decision told (the agency) is that they were inconsistent. They have the option of basically explaining why the rules are written as they are. We’ll have to see.”

In July the three-judge panel of the US Court of Appeals for the DC Circuit vacated the new US HOS rule “in its entirety” stating that the government “neglected to consider a statutorily mandated factor of the impact of the rule on the health of drivers.”

The appeals court also said it had concerns with other parts of the new HOS regulations, including the legality of increasing daily driving hours, the justification for a sleeper-berth exemption and a 34-hour restart. It called the legal justification for such measures “problematic.”

The HOS legislation, which went into effect this January 4, has now been sent back to the Federal Motor Carrier Safety Administration (FMCSA) for revision. The new regulation reduced driver hours of service on-duty time from 15 hours to 14 hours in any 24-hour period but increased driving time one hour from 10 to 11 hours. It was the first revision of drivers’ hours of service in 65 years, but in April a group of organizations filed a petition to have the new regulation overturned and the court accepted their argument.

Immediately following the decision, the American Trucking Associations (ATA) raised concerns about safety: “ATA believes that switching back and forth between the old and new rules would be confusing to the point of adversely affecting highway safety.”

The appeal court explained FMCSA may conclude that the new rules do not cause driver health problems or that any such problems are outweighed by other factors (cost issues, etc.) but that it was incumbent upon the agency to affirmatively address those issues and explain its conclusions.

The ATA commented that the FMCSA’s failure to expressly consider driver health consequences “seems more of a technicality than a significant flaw in the rules”, adding it hoped the agency would be able to show that fatigue-reducing measures in the new rules would also have a beneficial effect on driver health.

In regard to the court’s “concerns” with other aspects of the new HOS rules, the ATA said the court’s discussion of its concerns and how those concerns could be alleviated by the agency, should provide FMCSA a roadmap for developing better justifications for the choices it made.

The ATA also wants the FMCSA to seek a greater delay in the appeals court ruling.

The US trucking lobby group says under the court’s rules the FMCSA can seek a greater delay in the effective date of the decision (for 90 days or more) by asking the court to issue a stay of its decision.

“ATA will encourage FMCSA to seek such a stay to minimize the confusion (and adverse safety consequences) that would result from putting the old HOS rules back in place for some interim period,” the ATA said.

Meanwhile, transborder carriers are left to deal with the consequences.

Immediately upon learning of the ruling, H&R Transport’s director of safety and compliance, Stephen Evans, sent a satellite message to all his fleet’s drivers advising them to abide by the current regulations.

“I just gave them a heads-up not to worry – that it’s simply a normal part of the process of having a new piece of legislation,” Evans said. “There are always challenges and there are always groups that try to massage the thing and it’s a healthy process.”

Evans likens any panic surrounding the announcement to the concerns aired by the industry when the new US HOS regime was first introduced.

“Everybody made it out that it was going to be such a horrible, horrible thing…Certainly there has been some impact but it’s not as dire as some of them made it out to be,” said Evans of the new HOS rules south of the border. “Once they went into place over the last couple of months, it’s amazing how everyone who was predicting such a gloomy outlook has found that it really hasn’t been that nasty and it was actually a fairly easy transition. I think anyone who would make much out of this situation now is doing the same thing.”

Reimer Express Lines isn’t expecting much of an impact at all since most of its drivers operating south of the border are team drivers. Reimer president Allan Robison says it’s also business as usual within his company – at least until the 45-day review period wraps up at which time, anything could happen.

“Who knows where it’s going to go in 45 days?” Robison said. “I don’t know whether they’ll go back to the old rules or whether they’ll come up with some sort of explanation that makes the courts happy.”

While it may be business as usual for Canadian carriers for the time being, they have expressed some concern that Canada’s own impending HOS changes may be impacted by the US ruling.

“It’s certainly not great timing,” said Reimer’s Robison. “We worked so hard on this one here in Canada and I think that we have done what the US didn’t do – we’ve provided the science and everything else and I think it should move forward. But you never know, politically some people may want to sit back and take another look.”

Evans agreed: “We’ve done a fair bit of work to get to where we are now…I’m hopeful that it won’t make a huge difference.”

Brian Orrbine, chief of the Road Safety and Motor Vehicle Regulation Directorate for Transport Canada’s Motor Carrier Group, was on vacation and not available for comment, but Transport Canada spokesman Peter Coyles had this to say: “We’re aware of the court decision. As for our own process, we’ve published our own regulations in the Canada Gazette Part 1 and we’ve received comments and we’re reviewing them. We’ll certainly monitor ongoing developments in the US closely.”

***

EXAMINING THE OPTIONS NOW THAT THE US HOURS OF SERVICE RULES ARE OVERTURNED

The Canadian Trucking Alliance advises that once the United States Court of Appeals for the District of Columbia Circuit issues its formal decision on the matter, it will provide the date on which it will become effective and then the Federal Motor Carrier Safety Administration (FMCSA) will have 45 days to consider its course of action. There appear to be three obvious paths that FMCSA can take:

To make an appeal to the United States Supreme Court – but this can only be done on constitutional grounds;

To rescind the current rules and revert to the previous rules and eventually promulgate new rules within a specified period of time;

To continue with the current rules and promulgate new rules within a specified period of time.

FMCSA administrator, Annette Sandberg, pointing out that under the court’s rules of procedure, the FMCSA will have 45 days to review the decision and choose its next course of action, said federal authorities and state law enforcement partners will be advised they are to continue complying with and enforcing the current HOS rules.

Under the current HOS rules, drivers’ hours of service on-duty time was reduced from 15 hours to 14 hours in any 24-hour period. But actual driving time was increased one hour from 10 to 11 hours.

The take on the court decision from

the people behind the wheel

Initial reaction to the court decision among those representing the men and women who actually have to live with the rules was mixed.

While Teamsters president Jim Hoffa called the court decision “a victory for all truck drivers” the Owner-Operator Independent Drivers Association (OOIDA) was more guarded in its comments.

“Working behind the wheel of a truck is hard, and our concern with this set of rules was that they would increase driver fatigue. We know fatigue creates danger on the highways,” Hoffa said shortly after the decision was announced.

OOIDA executive vice-president Todd Spencer had five words to sum up the latest challenge to the US Hours of Service (HOS) regs: “It’s kind of a mess. Right now we can really only speculate about what the court decision may ultimately mean.”

However, the owner/operator group says the challenge may not necessarily be a bad thing – if it forces the Federal Motor Carrier Safety Administration to factor driver wait time into a revised edition of the HOS rules.

“We look at the issue with mixed emotions,” said Spencer, noting the revamped HOS rules neglected to address wait times drivers are faced with while loading and unloading. If a forced revision to the regs was to encompass changes that would take driver wait time into account, it could ultimately be a victory for drivers and owner/operators, he suggested.

He also pointed out the original mandate from Congress said loading and unloading time should be considered when the new rules were drafted – a point that he says was overlooked in the end.

“Nowhere in that final rule is that subject addressed,” Spencer insisted.

Until the regulations take wait times into consideration, Spencer said “We won’t have compliance with any Hours-of-Service formula.”

He added OOIDA members have expressed some frustration over the latest bump in the road.

“There’s a lot of uncertainty as to which regulations they should be following,” Spencer said. Drivers are currently required to comply with the latest HOS rules, introduced earlier this year.

While OOIDA isn’t yet certain how all this will play out, Spencer said it could be a non-issue if the FMCSA is able to simply explain how they have addressed driver health issues when drafting the new regulations.

“If they address that issue, in essence they’ve satisfied the judges’ concerns,” he said.